October 07, 2005
Withdraw Miers?
Posted by Gordon Smith

Charles Krauthammer lays down the gauntlet:

By choosing a nominee suggested by Senate Democratic leader Harry Reid and well known only to himself, the president has ducked a fight on the most important domestic question dividing liberals from conservatives: the principles by which one should read and interpret the Constitution. For a presidency marked by a courageous willingness to think and do big things, this nomination is a sorry retreat into smallness.

I agree, but Bush will not withdraw her nomination. The Senate will be asked to do the dirty work, and I hope that blunders like this will make that task easier.

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Comments (7)

1. Posted by William Henderson on October 7, 2005 @ 10:00 | Permalink

Hi Gordon,

I am afraid I am going to have to call you on this one.

Don't you think it is a bit premature to call for the withdrawal of Harriet Miers? At a minimal, don't you want the benefit of hearings so that she has the opportunity to put things (like the alleged "blunder") into context? Perhaps she is more thoughtful than you would have ever believed.

On balance, the politicians are warming to Miers (with the exception of those on the right and left that demand the results of a litmus test that would cause this whole process to impode), while law professors and the media intelligensia (e.g., Will, Krauthammer, Kristol, and Coulter) generally range from disappointed to hostile.

What, exactly, are your reservations about Miers that cannot be cured by information that might be forthcoming at the confirmation hearings? And is there any way that a reasonable person (indeed, a reasonable conservative) might view the very weaknesses you pinpoint as reasons to vote for Miers? If so, do the conservatives in the Senate really want to take this opportunity to implode by forcing a withdrawal? For Godsakes, pick you battles!

If Miers graduated from Harvard or Yale, I really doubt there would be this much of an outcry. Remember that credentials are a heuristic--they sometimes produce errors, and some very large (e.g., Souter, depending upon your ideology worldview). But personal knowledge can be used to correct these error terms.

People who have worked closely with Miers (for YEARS) appear to uniformly support her. Orin Hatch, who falls into this camp, does not even need hearings; he'd vote for her today. Maybe they understand something that the rest of us are missing. The hearings will tell us more.

On the blog, you always appear so eventempered--that is the conservative Gordon Smith I have learned to appreciate, the one that calls out my liberal prejudices and makes be a better thinker. Come on, be patient!

2. Posted by Gordon Smith on October 7, 2005 @ 10:52 | Permalink

Gee whiz, Bill. I waited a whole week before calling for her withdrawal! ;-)

Seriously, though, I have been waiting to post anything that would betray my position on this nomination because I thought that there might be a chance that Miers would be more substantial than her CV makes her appear. When I first heard rumors about her, I assumed that she must be a brilliant constitutional lawyer who simply hadn't been a judge or a professor. I haven't seen any evidence to that effect. Not even a scintilla. And it's not like the administration hasn't had opportunities to defend their choice.

My support for withdrawal is based on the assumption that no new evidence will be forthcoming. If Bush knows something the rest of us don't, by all means proceed with the hearings. What the rest of us know is that she appears to be an able administrator, which might be an important skill if she were being nominated for Chief Justice, but she's not. (Notice that the positive spin on the "Warren" comment is that she meant to refer to "Warren Burger" and that she admired him for his administrative prowess. That's the positive spin!)

What we would like to be surprised to learn is that she has thought deeply about the Constitution and judging and that she has the capacity for intellectual leadership in connection with a right-of-center world view. If she has these things, plow forward. But if this is just about getting the right votes -- and I suspect this is the case -- end it now. For me, the controversy is not about whether she went to Harvard or Yale -- I prefer Chicago grads, but that's really beside the point -- it is about whether she is able to articulate a clear vision of the Constitution that comports roughly with my own. That's why I plugged my nose and voted for George Bush rather than sitting out the last election. He promised that, and by all appearances, he has failed to deliver.

3. Posted by William Henderson on October 7, 2005 @ 11:21 | Permalink

Well, I for one DO think that Bush has a moral obligation to fulfill his promise of putting a "strict constructionist" on the bench, but as Sunstein has pointed out on the Chicago blog, it is unclear what that means. (And yes, I too, prefer Chicago grads.)

In conjunction with Bush's other comments praising Scalia and Thomas, I think it means a narrow reasoning of the 1st and 14th Amendments, among other things. But for most of the conservative base (which excludes conservative law professors), it is not about the quality of the prose that will be churned out by her chambers (and Scalia is arguably the most gifted writer on the court, left or write). I am sure that Miers prose (aided by clerks, after all) will be on par with the other Justices (though not Scalia). At bottom, this really is about the votes she will cast as measured against the political capital that George W. has remaining to spend on other pressing national issues.

That said, if you held your nose for W. on the belief that he was promising a potential luminary like Scalia (and McConnell and Luttig arguably fit that mold), then I can see why you would be so bitter. Maybe the damage to the Republican party is less of an issue for you. Compromise is not always a virtue. That makes sense.

4. Posted by John Lederer on October 7, 2005 @ 15:57 | Permalink

One really ought to take a look at Beldar's admittedly partisan review of her cases:


5. Posted by William Henderson on October 7, 2005 @ 17:52 | Permalink


Wow, yes, one does have to read that entry by Beldar. Savage, brutal, unrelenting, hilarious. He adds some of amazing facts to the blogosphere of opinion on Miers. Thanks for the tip.

6. Posted by mathew Pauley on October 7, 2005 @ 23:11 | Permalink


Does Miers or does she not look like Senator Palpatine?

7. Posted by Gordon Smith on October 8, 2005 @ 10:33 | Permalink

John, That post was painful to read. It is so full of hyperbole, condescension, and non sequitur that I had a difficult time getting through it.

The bottom line? Harriet Miers was a competent lawyer. I suppose some people have questioned that, but I think most people acknowledge that she was a hard-working and skillful advocate. Just like thousands of other lawyers in the U.S.

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